Two cases from the Society’s legal department: on line violence and presidential immunity

social-media-violence

[Photo source: theconversation.com]

By Joe America

I find legal documents in the Philippines to be enlightening. For one thing, I can read the arguments from the people involved rather than as filtered through mass media, the State’s troll armies, or other biased or unreliable sources.

Here are two cases I found pertinent because they involve how to deal with the ease of insult that appears to have entered the Philippine social mainstream as common and even accepted abuse.

  1. Senator Hontiveros’ proposed new legislation: An act defining gender-based electronic violence, providing protective measures and prescribing penalties therefor, and for other purposes.
  2. Senator De Lima’s Supreme Court filing against President Duterte seeking remedies for the President’s abusive acts and threats against the Senator.

Both of these cases address situations in which a person is viciously attacked either verbally or on-line.

Is the nation civil or not, decent or not, abusive or not? Can civility be legislated or mandated by the courts?

Senator Hontiveros’ legislation

Here is the rationale for the proposed act, in the Senator’s own words:

Misogynistic and homophobic attacks on social media are examples of gender-based electronic violence. Many of the victims are young people, who use social media as their primary outlet of expression. These attacks have the effect of silencing this expression, and contributing to a culture of misogyny and hate. [Link to the Senator’s full explanation, one page total]

So the battlefield is free speech. Those who argue against the bill are likely to say it inhibits free speech and proponents will argue the abuse limits free speech and other human rights. Plus there are gender concerns, as recited in the proposed legislation:

It is the policy of the State to value the dignity of every human person and guarantee full respect for human rights. It is likewise the policy of the state to recognize the role of women in nation-building and ensure the fundamental equality before the law of women and men. [Link to the proposed act, 2 pages total]

The bill defines “gender-based electronic violence” and cites five specific forms, which I state briefly here in my own words:

  1. Unauthorized videos showing the victim’s private parts
  2. Sharing of pictures, voice or video of the victim that has lewd or sexual content.
  3. Harassing the victim with indecent, misogynistic or homophobic messages.
  4. Cyber-stalking, including the use of location trackers on cellular devices.
  5. Unauthorized use of the victim’s identity or private information which exposes the victim to harassment or injures the victim’s reputation.

Remedies include a protection order and relief, to include:

The penalty of imprisonment of not less than three (5) years but not more than ten (10) years and a fine of not less than One hundred thousand pesos (P100,000.00) but not more than Five hundred thousand pesos (P500,000.00), or both, at the discretion of the court . . .

Two implications that I can think of is that the “yellows” would no longer be able to show the photo of Mocha Uson with her hand down a guy’s pants, and anyone who revealed Joe America’s real identity would be in a boatload of trouble. There is a lot to discuss about this brief bill, but I will leave that to you, should you be so inclined.

Senator De Lima’s filing against President Duterte [De Lima court filing, pdf, 9mb,26 pages] 

This is a very hard-hitting petition from the Senator that takes the following logic:

  • The president, in his official capacity, does not have authority to harass and threaten citizens.
  • Furthermore, the President has harassed and threatened Senator De Lima, to her harm.
  • Because his acts are PERSONAL and not official, he has no immunity from suit.

The document presents an exhaustive recitation of the incidents in which the President has harassed or threatened the Senator, recites laws violated by the President, and shows that the behavior is not in the scope of his protected official duties. If you are not inclined to wade through the whole filing, I do suggest you at least flip to page 17 and read Sections 30 through 33. That will give you an idea of the tenor of the document and the approach being taken in the arguments.

The plea does not seek civil or criminal penalties, but does seek to cure abuses as follows:

  1. Enjoins the President and his staff from collecting private information about the Senator
  2. Requires the President to name the foreign country that enabled his staff to eavesdrop on the Senator.
  3. Orders the destruction of data improperly collected.
  4. Enjoins the President and his staff from making further statements that malign, threaten, or violate the Senator’s rights

The engagement of a foreign country to “spy” on a senator seems like a big deal to me. The US? China? Russia? It is not just the Senator’s inquiring mind that wants to know.

It also seems to me that any legal decisions forthcoming regarding allegations against the Senator about drugs or any other matter are so tainted by law violations that it will be difficult to make any charge stick. This case could give her virtual immunity if she wins it.

The political biases of the Supreme Court justices may also come into play. If she loses the case then the President can continue abusive practices, and his staff, and the Philippines will be an abusive place.

Conclusion

I personally hope both the proposed legislation and court filings prosper. For sure we are seeing a lot of chilling threats on line, and we can witness State activities that seem to be leading the nation to incivility (EJKs; troll armies if they are disseminating lies or abusive messages; the President’s language and threats). If decency and respect for human rights cannot be achieved by government officials and citizens taking responsibility for their own acts, then laws and court engagement are needed.

This all presumes Filipino citizens consider civility to be a virtue . . . I’m not sure on the point . . .

 

Comments
21 Responses to “Two cases from the Society’s legal department: on line violence and presidential immunity”
  1. Joe (not sure if today constitutes 60 days—– if so, kindly post my last response to caliphman 60 days ago, re evidentiary stuff, thanks), but

    as for harassment, legally speaking, I ‘ve never heard of it being handled at the US Supreme Court level, closest would be slander/libel, but harassment is different, it connotes something small, hence mostly handled at the local courts over here,

    In regular conversation, harassment may describe behavior that annoys or bothers someone. In restraining order court, where the term harassment needs to be clarified, it carries a much more narrow and specific definition.

    So restraining orders is IMHO the closest to your legal readings here, which may be granted when the petitioner can prove that he or she has been harassed by the respondent, or that the respondent has committed actual violence or credible threats of violence— for that , there’s terrorist threats, not mere harassment, terrorist threats is IMHO what they’re trying to get at here, but without any sense of immediacy (see below), it gets kicked back down to harassment.

    Being the subject of a restraining order may have severe consequences for the person whose behavior is restrained. He or she will be stripped of their right to own or possess firearms, over here. The restraining order will become a public record which may affect the restrained party’s employment. It could result in the loss of some professional licenses. Courts don’t take these consequences lightly.

    They will not strip people of their rights just because their behavior annoys or bothers someone else—– hence immediacy and potential violence of these threats.

    To prove harassment in a restraining order hearing, the petitioner must establish several elements:

    1. That the respondent has engaged in a “course of conduct”. Harassment involves a pattern of behavior that takes place over time, not just on a single occasion. That course of conduct must demonstrate a “continuity of purpose”.

    2. The course of conduct was directed at the petitioner. It is not sufficient to simply prove that the respondent is an asshole in general, has been an asshole to other people on other occasions, or that something he does annoys you.

    3. The course of conduct serves no lawful purpose except to annoy you or to cause you distress.

    4. The behavior would cause a reasonable person to suffer substantial emotional distress. It’s not sufficient to prove that the behavior caused you to suffer emotional distress. The court does not care if you’re especially sensitive, fragile, or unreasonable — those are not compelling reasons to strip someone else of their rights. If you want a restraining order, you must prove that the respondent’s behavior was so outrageous that a normal, healthy individual would have been seriously distressed by it.

    5. Also keep in mind that “substantial emotional distress” is more that mere annoyance. Most of annoyances, though, are not sufficient grounds for the issuance of a restraining order.

    Harassment can be much more complicated and difficult to establish than many litigants imagine, and that’s just at the local level, what more when both parties are powerful—- maybe not equally powerful in this particular example, but powerful nonetheless. Joe, although I feel for Senator De Lima, proving it in court with reliable, admissible evidence is another story—- at least that’s my understanding of this case, I’m sure it parallels with local judgements here.

    (ps~ If for no other reasons than Gen. James Mattis becoming Sec. of Defense under Trump, my vote has already paid off in spades, LOL! Happy Thanksgiving, everyone!)

    • That post is no longer available on the system.

      • Ah, too bad, that would ‘ve answered caliphman‘s questions (caliphman, I did answer your question, bud… 😉 60 days ago, when you asked. )

        “The engagement of a foreign country to “spy” on a senator seems like a big deal to me. The US? China? Russia? It is not just the Senator’s inquiring mind that wants to know.”

        There’s always this notion in the 3rd World that all conspiracies lead to either the US or Israel, and lately China & Russia. But realistically , I think because of the democratization of espionage (after all it is the 2nd oldest profession) Bentham’s Pan-opticon fully (i mean fully, realized) , Filipino ‘hackers’ can easily do what has been done, no need to outsource, this is small potatoes, Stuxnet it is not.

        • edgar lores says:

          *******
          Here’s a copy:

          ——————–

          ” He is in moderation, not banned, but I don’t forsee trying to weigh each submission he might make. ”

          Oh, in that case, Joe, let me make one comment to answer a few folks here, then I’ll make it a self-impose ban til after Thanksgiving, that should mean politics both here and there will have quieted down.

          I have nothing against De Lima, the principle of how things get investigated as per the discussion here was what bothered me, is all.

          caliphman, as far as evidentiary stuff goes, I’m not a lawyer—- I’m basing all this from Law & Order and other TV series, but the gut stuff, I’m basing off my personal knowledge of things. Like I said, I’m basing much of this from a light reading of this stuff, based on ip and edgar’s discussion (in that list edgar outlined sex tapes seemed the most interesting to Google).

          I was thinking it can be introduced in a case, by way of some gotcha moment, ‘Sen. De Lima do you know so and so?’, have you had personal close dealings with so and so, “No, sir!”, then explain this tape—– that type of gotcha evidence. But of course there’s discovery and depositions, so those types of gotcha moments are TV only.

          Aside from that gotcha evidence, I can also foresee maybe a character type evidence, ie. questionable judgement, going back to blackmail as possibility, again state of mind.

          But as chempo’s already explained it’s her long time driver, though chemp did mildly concede that “It’s most likely the drug lords got to Dayan” —- this is the angle I’m most interested in. And if there are other guys involved other than Dayan, from Google there’s also a Cesar Mancao (as De Lima’s lover) named as other possible candidates— from my time in Mindanao, I’m familiar with this name becuz there’s a movie made about him…

          is he connected to Bilibid?

          Also chempo’s spot-on about my interest and laser focus on sex scandals, I am after all part of the generation that got the brunt of the Clinton scandal involving a dress, stains and a cigar. And all other scandals similar since. My amateur extrapolation of this is that yeah the scandals may not connect to criminal cases, but criminal cases after having uncovered sex scandals usually follow—- hence my hunch here of dirrrty (spelling is from Christina Aguilera by the way).

          I totally agree that the sex scandal and Bilibid corruption may be separate. But since this is the only instance that we can possibly ID another guy (Dayan or another, on tape), not dependent on heresy or not-so solid physical evidence, what’s there to lose if investigators follow that thread? The money trail, as with everything, ie. Bangladeshi Bank 😉 , will go stale because of bagmen/women.

          I’m sure there’s a lot more threads to follow when investigating De Lima, all I’m saying is treat the sex tape as part of the larger investigation… if it is simply her driver and they are truly in love or just find each other attractive, that’s fine. But it should be investigated further.

          Good looking out, ip 😉 … I totally agree with you. But keep this in mind, when you’re dealing with folks in power, whether politicians or criminals, follow 3 things especially when investigating them, sex; money; dead bodies. All three are very easy to hide, but when you can get some sort of recording (in however ways), use that to your advantage, don’t toss it for some moralistic or principled reason,

          if it turns out to be a dead end, then you can toss—– BUT NOT BEFORE! My point here is purely investigatory.

          Alright, so as not to give Joe any more headaches, I’ll see you guys after Thanksgiving! Go Trump, LOL!

          ——————–

          • Thanks, edgar! That’s it!

            • Gemino H. Abad says:

              In our country, generally, even the poorest of the poor and the unlettered/uneducated in our laylayan (marginalized communities) ARE CIVIL. Sadly, our Supreme Court now (the 9 justices and 1 abstainer) are “legalistic” — imprisoned by the law’s alphabet, they deliberately blind themselves to the spirit of our Constitution from where all our laws flow (the spirit in the alphabet which spells out “respect for human dignity”).

              • alicia .m. kruger says:

                The social media addiction of the new generation and ‘the not so new’ is a new normal. Bullies and stalkers hide behind their keyboards and enjoy the public humiliation of their victims. They seem to be like the crawling spiritual cockroaches afraid of the light.

                JoeAm, mothers in the old days , just twisted the ears of their erring children as punishment for backbiting and gossiping. We learned well not to repeat the offense and played nice.

                Now, many seem to have lost the decency and respect for human rights. Respect. Some judges only learned to spell the word, ha ha! Laws should be in place to protect people from cyber bullies and stalkers. Seriously. They should be held accountable for the malice and miseries they inflict on people.

                Sadly, the Philippines have a serious bully pulpit identity and the bullying like the de Lima case is unrelenting. So how do you keep some idealistic set of rules when your opponent has no rules? You’d think that even a blind carpenter could see it’s a frame job.

                Would they be arrested?

              • You nailed that perfectly, alicia. A tragic comedy.

        • caliphman says:

          Welcome back, my young irrepressible firebrand and friend. That discussion of ours on evidentiary basis has fallen victim to my aging memory, most unfortunately. But thank you edgar, for finding and resurrecting it from the pentabytes of TSH archives you must be storing in your computer system. Either that or that 60 day old thread must have been so remarkable it deserved its own remarkable.

          Lance, a couple of things before I start my less stimulating business for the day. Assuming that archival tidbit from EL was what you were referring to, then not to worry about your seeming obsession with the lurid lovelife of de Lima with her driver as an essential part if the legal investigation to establish her guilt in a criminal drug conspiracy.

          First of all, do not get me wrong. If you ever decide to add JD studies along with your other doctoral degrees, one thing to keep in mind is that single young lawyers do not require probative legal justification in examining possibly erotic images and videos of the accused in conducting their….ummm explorations..I mean investigations. Its the old why there were playboy magazines mixed with the the monthly updates to the Federal Register.

          Secondly, as a Trump supporter, you must admit to the tremendouus role that Russian hackers successfully played in contributing to Clinton’s defeat by releasing the latter’s secret campaign missives via Wikileaks. The point being that the participation by a state cyberspying agency in assisting in the elimination of the enemy of a friendly head of state is not just idle conjecture. By all means, that enemy’s sexual dalliances may have to be scrutinized but so too must the possibility of Russian and Chinese undercover assistance in monitoring under the cover activities of the accused and now plaintiff.

          What do you think?

          • caliphman says:

            I keant to type bookmark instead of the second remarkable in the beginning paragraph, Edgar.

            • LOL! caliphman, thanks, after 60 days, I don’t know if my hunch on De Lima has been proven correct, or if all this mess is still up in the air— I’ve not been following. But I totally agree with you re explorations/investigations when it comes to the lurid, after all it was Weiner’s weiner that brought down the Clintons. Alas, I’m just a Google PhD.

              Which brings us to Russia and cyber-spying (will add more to this re the over-arching point of Joe’s article on cyber-bullying, which will be Melania Trump’s pet project as first lady, LOL! the irony!). Sure 99% it’s Russia, throw in China in there too, and hacktivists, etc. but the point I think (and this relates to De Lima’s problems too) is discretion,


              (it’s really that simple. 😉 )

              Like I said, espionage has been democratized , Bentham’s pan-opticon is complete. Why would someone post their dick pics and other private stuff online, much less keep ’em in your computer just for the taking?

              So my point here is knowing this Brave New World, where there is no more privacy (so long as you digitize your wares) in the end , it doesn’t matter who the culprits are, whether they be state or private actors, the onus

              here is Discretion—– hence you cannot blame others of your own in-Discretions , now if these state/private actors are making stuff up, then that’s another story (and that’s another discussion that’s more related to cyber-bullying, which I’ll attempt to tackle below).

              (Also, I know Hillary’s blaming Comey’s screw-ups re the investigations, ie. cops aren’t suppose to explain why they’ve not press charges, that’s the DA’s , or here the US Attorney’s business, but

              personally I think what brought the Clintons down was Beyonce headlining for the CMAs a week before, then Hillary was seen with Beyonce the weekend right before the Elections… if the point was that Hillary was for the poor working folks in the rust belt—- who also listen to country music—- her dancing and shit with Beyonce just turned everyone off.

              And frankly, I think the Electoral College worked perfectly here, Beyonce symbolizes the elitist blue states, Hillary just did not empathize, Trump did, hence the victory. The Electoral College ensures that not just the coastal liberal states get a say. The CMA’s is something I’d not heard covered by pundits, but from my buddies who

              live in the Rust Belt, the Bible Belt and the South, it was a big deal, like crapping on someones breakfast cereal. )

  2. karlgarcia says:

    I do not want to believe that the SC and the C of A and the rest if the judiciary including the sandigan bayan, can be bought, but from the recent turn of events,I am afraid to say that they can be bought. But anything can happen, it is a case to case basis,I wish that the SC can review the immunity from suit.

    About the Hontiveros bill, first it must have a lower house counterpart, then as per usual it must gain consensus.
    I do not care if the whole wide world is different from us if we eliminate trolling in its worst and darkest form and fake news,but this harassment is a start. cyber libel is strict, but nobody seem to carethey must make people care.

    —–
    If Delima survives this and the next leader is not against her, I hope justice will be served.

    • “1.4. Would Duterte be liable for calling Ambassador Goldberg bakla?”

      edgar , I read this really good article from the Atlantic about DU30 during my 60 day hiatus on here , essentially that there are usually two connotations when it comes to the word gay in modern Western usage (ie. among Native Americans and some sub-Continent Indians, they are also seen as spiritual liaisons) ,

      1. a homosexual, plain and simple.

      2. a weak person, not a predator but a prey, a victim ,

      IMHO that’s how DU30 meant it, a person to be fleeced:


      http://www.theatlantic.com/news/archive/2016/10/duterte-us/505001/

  3. edgar lores says:

    *******
    1. If Senator Hontiveros’ proposed act were law, House Speaker Pantaleon Alvarez and members of the justice committee would be liable. Alvarez would also be liable under specific form 3 (harassment) for talking about the purported sex video several times.

    1.1. A possible loophole to the first two specific forms is whether or not the video shows the Senator. She is the intended victim but she may not be the actual actor in the video. If she is not the actor she is not the victim.

    1.2. I also note that links to the sex video and the video itself have been posted on Facebook by supporters of the Senator to prove the actor is not the Senator. Does intention matter?

    1.3. Would Duterte be liable for specific form 3 for referring to the sex video several times? (Does the proposed act cover news media as well as social media?) There are sexual threats in news media commentary as well.

    1.4. Would Duterte be liable for calling Ambassador Goldberg bakla?

    2. Senator De Lima’s proposed act has no teeth. However, it might settle the issue whether a president has immunity from suit for <strongprivate acts.

    3. I am in favor of both proposed acts.
    *****

    • “Is the nation civil or not, decent or not, abusive or not? Can civility be legislated or mandated by the courts?”

      That’s the over-arching question here.

      And no, behaviour must not be legislated. I know there’s no 1st Amendment over there, but freedom of expression is , these days, universal when it comes to Western and Westernized countries (which I think the Philippines is). So ask first , if the more important concept of free expression is being strenghtened here or is it actually being diminished—- IMHO it’s being diminished.

      Which means, the law of unintended consequences, suddenly becomes apparent.

      ” 2. Senator De Lima’s proposed act has no teeth. However, it might settle the issue whether a president has immunity from suit for <strongprivate acts. "

      I agree with edgar‘s no teeth here, and add that these proposed acts are essentially wishful thinking. Here I’d encourage edgar to proceed with why Senator De Lima’s proposed act has no teeth, and I think the logical end would open up to this notion of unintended consequence. So follow up this thought please.

      ” JoeAm, mothers in the old days , just twisted the ears of their erring children as punishment for backbiting and gossiping. We learned well not to repeat the offense and played nice.”

      I for one, think that gossiping and backbiting serve actual purposes in society as a whole.

      It’s not as obvious in Western setting, but you go out to the boonies, clans and small town settings in the Third World, and you realize all this gossiping and backbiting serve to spread information, ie. stay away and keep your eye on that hussy because she’ll take your man, or keep an eye on that guy because he’s a terrorist or sympathizer… also backbiting serves to create dissent and establish social mores.

      So this whole ‘don’t gossip’ stuff as some sort of valid value, I think came out of Paul’s letters, since he was constantly having to set his flock straight, ie. screwing around among his flock (the same today) was rampant. So it became this Christian value, not to gossip… BUT go to Africa and the Mid-East, and gossip serves a valid function , like news and entertainment, all at the same time.

      There’s a balance as with anything, of course, ie. Hawthornes’ “the Scarlet Letter” and Miller’s “the Crucible” represents one slope to slip towards, ie. Witch Hunts and Exclusion/Expulsion as inhumane acts.

      But i would say, mind the other side of this slope which leads to Thought Control and more Propaganda—- which I would argue as more destructive.

      ” Sadly, our Supreme Court now (the 9 justices and 1 abstainer) are “legalistic” — imprisoned by the law’s alphabet, they deliberately blind themselves to the spirit of our Constitution from where all our laws flow (the spirit in the alphabet which spells out “respect for human dignity”). ”

      How to ensure that we maintain balance here. That’s the question.

      Now, Genimo , IMHO is on to something. That in the balancing act between the spirit of the law and the letter of the law , the spirit of the law must prevail, or at least it should be up for interpretation, conditions must be there to ensure the spirit of the law is center stage.

      Once you legislate things, you’re effectively ensuring that the letter of the law prevails, here sadly, Genimo is circling back to the very problem he’s outlined. When laws should be left open ended, hence my favourite of the Bill Rights is the 9th,

      Which brings us to bullying, cyber or otherwise.

      ” I do not care if the whole wide world is different from us if we eliminate trolling in its worst and darkest form and fake news,but this harassment is a start. cyber libel is strict, but nobody seem to carethey must make people care.”

      karl , will it really eliminate trolling? As Chief Troll here, I can already tell you that it will not.

      Like over here, I’m sure there are already laws in place in your Penal Code that criminalizes harassment, and it’s more violent cousin, terrorist threats.

      So what is it in cyber bullying that necessitates new laws? and I’d submit that it is the anonymity that’s the most disconcerting, in general, but specifically amongst dissents (ie., folks being rounded up now from Hong Kong to China). So gov’ts mainly will love the laws being proposed here—- same way “offending Islam” is favourite in Muslim countries.

      This is where the law on unintended consequences surfaces , because IMHO you’re only hurting dissent , which is the most important type of voice once you have group think in effect.

      Libel and slander too are already in the books, so long as one party can be identified against the other party. But I say protect anonymity as part and parcel of dissent—- there’ s a reason why there are curtains once you vote.

      Anonymity is valuable here and I would add strengthens free expression.

      So the question now is, how do you cull the bad type of free expression, ie. fake news and trolling? It’s simple, educate the people.

      And as for bullying, cyber or otherwise, again simple… FIGHT BACK!!!

      Don’t hide behind laws , don’t create new laws , fight back—- if De Lima can’t charge DU30 with criminal harassment, much less terrorist threats, then as edgar stated this then is an exercise in futility, “no teeth” … which makes one ask , What then is the point?

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